must subscribe and take, before one of the officers specified in section 842 of this act, and file with the clerk, an oath, faithfully, honestly, and impartially to discharge the trust committed to him. If a commissioner becomes incompetent, or neglects or refuses to serve, or removes from the State, the court may remove him. The court may, from time to time, fill any vacancy created by death, removal, or resignation.

New.

§ 2330. [Am'd, 1895.] Jury to be procured; proceedings thereupon.

The commissioners, or a majority of them, must immediately issue a precept to the sheriff, designated in the commission, requiring him to notify, not less than twelve nor more than twenty-four indifferent persons, qualified to serve, and not exempt from serving, as trial jurors in the same court, to appear before the commissioners, at a specified time and place, within the county, to make inquiry, as commanded by the commission. The sheriff must notify the jurors accordingly; and must return the precept, and the names of the persons notified, to the commissioners at the time and place specified in the precept. The commissioners, or a majority of them, must determine a challenge made to a juror. Upon the failure to attend, of a person who has been duly notified, his attendance may be compelled; and he may be punished by the court for a contempt, as where a juror, duly notified, fails to attend at a trial term of the court. The commissioners may require a sheriff to cause a talesman to attend, in place of a juror notified, and not attending, or who is excused or discharged; or they may adjourn the proceedings, for the purpose of punishing the defaulting juror, or compelling his attendance. But it is not necessary to cause any talesman to attend, if at least twelve of the persons, notified by the sheriff, appear and are

sworn.

New. Am'd by L. 1895, c. 946 (in effect Jan. 1, 1896).

§ 2331. Proceedings upon the hearing.

All the commissioners must attend and preside at the hearing; and they, or a majority of them, have, with respect to the proceedings upon the hearing, all the power and authority of a judge of the court, holding a trial term, subject to the directions contained in the commission. Either of the commissioners may administer the usual oath to the jurors. At least twelve jurors must concur in a finding. If twelve do not concur, the jurors must report their disagreement to the commissioners, who must thereupon discharge them, and issue a new precept to the sheriff, to procure another jury.

New.

§ 2332. Return of inquisition and commission.

The inquisition must be signed by the jurors concurring therein, and by the commissioners, or a majority of them, and annexed to the commission. The commission and inquisition must be returned by the commissioners, and filed with the clerk.

New.

§ 2333. Expenses of commission.

The commissioners are entitled to such compensation for their services, as the court directs. The jurors are entitled to the same compensation, as jurors upon the trial of an issue in an action in the same court. The petitioner must pay the compensation of the commissioners, sheriff, and jurors.

New.

§ 2334. [Am'd, 1895.] Proceedings upon trial by jury in court.

Where an order is made, directing the trial, by a jury, at a trial term, of the questions of fact, arising upon the competency of the person, with

respect to whom the petition prays for the appointment of a committee, the order must state, distinctly and plainly, the questions of fact to be tried; which may be settled as where an order for a similar trial is made in an action. The court may, in that or in a subsequent order, direct that notice of the trial be given to such persons, and in such a manner as is deemed proper. The trial must be reviewed in the same manner, with like effect, and, except as otherwise directed in the order, the proceedings thereupon are, in all respects, the same as where questions of fact are tried, pursuant to an order for that purpose. The court may make inquiry by means of a reference or otherwise, as it thinks proper, with respect to any matter, not involved in the questions tried by the jury, the determination of which is necessary in the course of the proceedings. The expenses of the trial, and of such an inquiry, must be paid by the petitioner.

New. Am'd by L. 1895, c. 946 (in effect Jan. 1, 1896).

§ 2335. [Am'd, 1895.] Subject of inquiry in cases of lunacy. Where the petition alleges, that the person, with respect to whom it prays for the appointment of a committee, is incompetent, by reason of lunacy, the inquiry with respect to his competency, upon the execution of a commission, or the trial at a trial term, as prescribed in this title, must be confined to the question, whether he is so incompetent, at the time of the inquiry; and testimony, respecting any thing said or done by him, or his demeanor or state of mind, more than two years before the hearing or trial, shall not be received as proof of lunacy, unless the court otherwise specially directs, in the order granting the commission, or directing the trial by jury.

From L. 1874, c. 446, § 2. Am'd by L. 1895, c. 946 (in effect Jan. 1, 1896).

§ 2336. Proceedings upon verdict, or return of commission.

Upon the return of the commission, with the inquisition taken thereunder, or the rendering of the verdict of the jury, upon the questions submitted to it by the order for a trial by a jury, the court must either direct a new trial or hearing, or make such a final order upon the petition, as justice requires. Where a final order is made, dismissing a petition, the court may, in its discretion, award in the order a fixed sum, as costs, not exceeding fifty dollars and disbursements, to be paid by the petitioner to the adverse party. Where a committee of the property is appointed, the court must direct the payment by him, out of the funds in his hands, of the necessary disbursements of the petitioner, and of such a sum, for his costs and counsel fees, as it thinks reasonable; and it may, in its discretion, direct the committee to pay a sum, not exceeding fifty dollars and disbursements, to the attorney for any adverse party.

New.

§ 2336a. [Added, 1895.] Sections of this title not applicable when application for committee is made under authority of this State.

Sections 2325 to 2336, both inclusive, of this title shall not apply to applications for the appointment of a committee made by it on behalf of the State to secure reimbursement, in whole or in part, for maintenance and support in a State institution.

Added by L. 1895, c. 824.

§ 2337. [Am'd, 1887, 1915.] Security to be given by committee.

The provisions of sections 2576, 2650 and 2652 of this act, respecting the security to be given by the guardian of the person or of the property of an infant, appointed by a surrogate's court, except that part thereof authorizing the appointment of an associate with the guardian and the security to be given in such a case, apply to a committee of the person or of the property, appointed as prescribed in this article. A committee of the property cannot enter upon the execution of his duties, until security is given, as prescribed by the court. A committee of the person

637

cannot enter upon the execution of his duties, until security is given, if required by the court.

New. Am'd by L. 1887, c. 681; L. 1915, c. 637 (in effect May 14, 1915).

§ 2338. [Am'd, 1890, 1895, 1915.] Compensation of committee.

A committee of the property is entitled to the same compensation as an executor, administrator, or testamentary trustee. But in a special case, where his services exceed those of an executor or administrator, the supreme court or a county court within the county may allow him such an additional compensation for such additional services, as it deems just. The compensation of a committee of the person must be fixed by the court, and paid by the committee of the property, if any, out of the funds in his hands. The additional compensation authorized by this section may be allowed to the committee upon any judicial settlement made by him, and shall be for such additional services up to and including such settlement.

New. Am'd by L. 1890, c. 516; L. 1895, c. 946; L. 1915, c. 652 (in effect Sept. 1, 1915).

§ 2339. Committee under control of court; limitation of powers.

A committee, either of the person or of the property, is subject to the direction and control of the court by which he was appointed, with respect to the execution of his duties; and he may be suspended, removed, or allowed to resign, in the discretion of the court. A vacancy created by death, removal, or resignation may be filled by the court. But a committee of the property cannot alien, mortgage, or otherwise dispose of, real property, except to lease it for a term not exceeding five years, without the special direction of the court, obtained upon proceedings taken for that purpose, as prescribed in title seventh of this chapter. In part from L. 1874, c. 446, tit. 2, § 27.

§ 2340. Committee of property may maintain actions, etc.

A committee of the property, appointed as prescribed in this title, may maintain, in his own name, adding his official title, any action or special proceeding, which the person, with respect to whom he is appointed, might have maintained, if the appointment had not been made. From Id., § 5.

§ 2341. [Am'd, 1894, 1906, 1915.) Id.; to file inventory and account.

The provisions of sections 2660 and 2661 of this act, requiring the general guardian of an infant's property, appointed by a surrogate's court, to file in the month of January in each year an inventory, account and affidavit, and prescribing the form of the papers so to be filed, apply to a committee of the property appointed, as prescribed in this title. For the purpose of making that application the committee is deemed a general guardian of the property; the person with respect to whom he is appointed, is deemed a ward and the papers must be filed in the office of the clerk of the court by which the committee was appointed, or if he was appointed by the supreme court, in the clerk's office where the order appointing him is entered, and, if the incompetent person for whom such committee is appointed has been committed to a state institution, and is an inmate thereof, a duplicate of such inventory, account, and affidavit, shall be filed also by said committee with the superintendent or officer having special jurisdiction over the institution where the incompetent person is confined. In every case where a committee has used or employed the services of an incompetent person, with respect to whom he has been appointed a committee, or where moneys have been earned by or received on behalf of such incompetent person, the committee must account for any moneys so earned or derived from such services, the same as for other property or assets of the incompetent person. Substituted for 2 R. S. 53 (part 2, c. 5, tit. 2). §§ 8, 9. L. 1906, c. 181; L. 1915, c. 630 (in effect May 14, 1915).

Am'd by L. 1894, c. 51;

§ 2342. [Am'd, 1895, 1899, 1914, 1916.] Id.; may be compelled to file the same, or to render an additional account, etc.

In the month of February of each year, the presiding judge of the court, by which the committee of the property was appointed, or if he was appointed by the supreme court, the county judge of the county where the order appointing him is entered, must examine, or cause to be examined under his direction, all accounts and inventories filed by committees of the person and property, since the first day of February of the preceding year. If it appears, upon the examination, that a committee appointed as prescribed in this title, has omitted to file his annual inventory or accounting, or the affidavit relating thereto, as prescribed in the last section, or if the judge is of the opinion that the interest of the person, with respect to whom the committee was appointed, requires that he should render a more full or satisfactory inventory or account, the judge must make an order requiring the committee to supply the deficiency, and also, in his discretion, personally to pay the expense of serving the order upon him. An order so made may be entered and enforced, and the failure to obey it may be punished, as if it were made by the court. Where the committee fails to comply with the order, within three months after it is made, or, where the judge has reason to believe that sufficient cause exists for the removal of the committee, the judge may, in his discretion, appoint a fit person special guardian of the incompetent person with respect to whom the committee was appointed, for the purpose of filing a petition in his behalf for the removal of the committee and prosecuting the necessary proceedings for that purpose. The committee may be compelled in the discretion of the court, to pay personally the costs of the proceedings so instituted. Where the examination of the accounts and inventories of committees of incompetent persons provided for herein is made pursuant to the order or direction of a county judge, the expense of such examination as allowed by the county judge directing the examination shall be payable by the county treasurer of the county out of any court funds in his hands upon the order of the county judge directing such examination. The committee of the property of an incompetent person appointed as prescribed in this title, may apply to the court making the appointment, for an order to permit him to render to such court an intermediate judicial account of all his proceedings affecting the property of the incompetent person to the date of the filing thereof. And the court upon examination may, in its discretion, make an order directing that such account be filed with the clerk of the court where the application is made, on or before the date determined by the order.

The account to be filed pursuant to such order shall be verified and contain a just, true and proper statement of all the acts of the committee, and an itemized statement of the receipts and disbursements of any and all moneys and properties that have come into hand covering the whole of the period for which the accounting is asked. A summary statement shall be included in the account and all vouchers shall be filed therewith. Notice of the filing of such account pursuant to such order and of an application for the judicial settlement thereof shall be given in the manner in which and to the persons to whom notice of application for the appointment of a committee of the person or property of an alleged incompetent person, lunatic, idiot or habitual drunkard is required to be given by title six of chapter 17 of the code of civil procedure. Upon the return day of the notice of such application the court shall have the power to appoint a referee to take and state such account and to report to the court with his opinion thereon as to all matters embraced in said account. The court shall have power and it shall be its duty to appoint a suitable person as special guardian of the incompetent person for the protection of his rights and interests in said proceeding.

Upon the motion for a confirmation of the report of a referee appointed pursuant to the provisions hereof or if the accounting be had before the court, upon the court's determination, said account shall be then judicially adjusted, determined, fixed and filed.

The compensation of the referee and of the special guardian appointed

under the provisions of this chapter shall in every instance be fixed by the court to be paid out of the estate, if any, of the incompetent person. The judicial settlement of the final account of a committee shall be made in the same manner, so far as may be applicable, as provided in this section for the judicial settlement of an intermediate account.

Substituted for L. 1874, c. 446, tit. 2, § 4, last sentence. Am'd by L. 1895, c. 746; L. 1899, c. 350; L. 1914, c. 344; L. 1916, c. 535 (in effect Sept. 1, 1916).

§ 2343. Property, when to be restored.

Where a person, with respect to whom a committee is appointed, as prescribed in this title, becomes competent to manage himself or his affairs, the court must make an order, discharging the committee of his property, or the committee of his person, or both, as the case requires, and requiring the former committee to restore to him the property, remaining in the committee' hands. Thereupon the property must be restored accordingly. erom L. 1874. c. 446, tit. 2, § 28.

§ 2344. [Am'd, 1908, 1915.] Id.; disposition in case of death.

Where a person, of whose property a committee has been appointed, as prescribed in this title, dies during his incompetency, the power of the committee ceases; and the property of the decedent must be administered and disposed of, as if a committee had not been appointed. The committee may, in such case, render to the court by which he was appointed, a final account of his proceedings touching the property of the incompetent. Such account shall contain an inventory in the form prescribed by section 2660 of this act and a full and true account in form of debtor and creditor of all his receipts and disbursements, and there shall be appended thereto an affidavit of the committee in the form prescribed by section 2661 of this act. Notice of the application for settlement of such account shall be given in such manner as the court may direct, to the sureties on the official bond of the committee or the legal representatives of such sureties, and to the executor or administrator of the decedent, if any; and, if there be no executor or administrator, to the decedent's husband or wife, and heirs and next of kin, or if any of those persons shall have died, to his executor or administrator. Such account shall be judicially settled, adjusted and determined, and, as to the proofs and vouchers in support thereof, shall be subject to the provisions of article one of title five of chapter eighteen of this act with respect to the accounting of executors and administrators.

From Id., § 29; 2 R. S. 55, § 25, L. 1865, c. 724. Am'd by L. 1908, c. 271; L. 1915, c. 632 (in effect May 14, 1915).

} 2344a. [Added, 1909.]

Court may compel performance of

contract made by incompetent person in certain cases.

The supreme court shall have authority to decree and compel the specific performance of any bargain, contract or agreement which may have been made by any idiot, lunatic or habitual drunkard, while such person was capable to contract; and of any contract in relation to lands made by the ancestor of such person from whom such person inherits or takes as devisee or otherwise; and to direct the committee of such person to do and execute all necessary conveyances and acts for that purpose; and in case the person entitled to such conveyance is the committee of such incompetent person the said court may, upon the petition of said committee, appoint some suitable and proper person to execute the said conveyance in the name of such incompetent person upon payment by the vendee of any sum remaining due to such person upon said contract, or upon the fulfillment of the contract on the part of the party who contracted with the person represented by said committee.

From 2 R. S. (pt. 2, c. 5, tit. 2. § 22), as am'd by L. 1880, c. 423, L Added by L. 1909, c. 65 (in effect Feb. 17, 1909).